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THE SILK PURSE: California Case Brings Opportunity to Idaho

By Barry Peters

Author's Note: The laws described in this article were substantially changed in 2009 to make Idaho the state with the greatest home schooling freedoms in the country. Please read the new information at the 'Idaho Law' tab to the left.

In my article in last quarter's CHOIS Connection, I trust all of you were convinced that the "California Case" outlawing homeschooling spelled disaster not only for California, but also for Idaho. For those of you who have followed this case closely, you know how badly I missed the mark. Not only did the case not go poorly for Idaho, it turned into a remarkable victory even for California home educators. Never have I been so pleased to be so wrong!

From my own failed attempt at forecasting the future, a couple of lessons are worth noting.

First, predicting the outcome of legal cases is always risky. Judges are human. That means they may occasionally even reach the right decision. The California case was certainly one of those. Despite all my pessimism about the likelihood of this three judge panel discovering and applying the correct legal principles after their first effort fell so far short of the mark, that is exactly what happened. I can't recall the last time that I heard of an appellate panel of justices reversing itself from a unanimous but erroneous decision in favor of one party, to correcting the outcome with a unanimous decision for the other party.

Second, home schoolers must remain vigilant in defending their right to teach their children at home. The initial California decision demonstrated how quickly the wheels can come off of a legal right that we all take for granted.

One of the deciding factors in the revised California ruling was a little-noticed amendment to California's statutes which was made some ten years ago. It was a technical correction to an earlier bill. It made a passing reference to parents teaching their children at home. Although it did not make any grand declaration that home schooling was legal in California, the appeals court in this recent decision recognized that it revealed a legislative perspective that approved of home education. That relatively minor toehold was enough to turn the tide and convince the justices that their earlier reading of the older cases was no longer correct.

Every few years in Idaho, small changes are made to our statutes based upon how they impact home education. We don't do this often because, in general, we like our statutes the way they are. They provide a substantial, though not unlimited, amount of freedom for home educators. And we have been blessed in Idaho with a generous measure of goodwill within our legislature toward home education.

So when a bill may have some impact on home education, we are often approached by the sponsors before the bill is introduced with an invitation to review and comment upon the bill. In this manner, we can often shape the bill to at least keep it from harming our rights. And sometimes we have been able to recommend changes to a bill that have actually strengthened our freedoms.

But, as the California case reminded us, it's the little details that can create either substantial problems or unexpected solutions. So we remain vigilant and, when a problem cannot be resolved behind the scenes, we push the red button and "go public" asking for the vigorous help of all home schoolers in the state to take part in the legislative process as citizen lobbyists to protect our freedoms.

This brings us to an unexpected turn of events here in Idaho.

Many of you will recall a few years ago when the Governor's Task Force on Children at Risk appeared to set its sights on home educators.

The Task Force hired three Boise State University professors to prepare a report on educational neglect in the state with special attention being paid to families who choose to teach their children at home. The result was a deeply flawed report declaring that there are 13,954 "missing children" in the state that are academically slipping through the cracks. Among other things, the report then urged the legislature to require registration and testing for all home schooled children in the state.

ICHE and CHOIS jointly prepared an in-depth critique of the statistical, legal, and logical deficiencies in the report. Dr. Brian Ray of the National Home Education Research Institute in Salem, Oregon also prepared a peer-review analysis of the report pointing out its serious shortcomings.

As a result of the energetic opposition of home schoolers, the report did not translate into any successful effort to impose registration and testing on home educators. In subsequent years, the report has been discussed, though no serious effort has been made to implement its recommendations.

This past summer, something of an olive branch was extended by the Task Force to home educators. The chairman of the Task Force contacted ICHE indicating that they wanted to make one small change in our existing statutes in order to clarify the definition of "educational neglect." They asked whether we might be able to support (or at least not oppose) their change.

In a subsequent conversation with the chairman, I mentioned that we were giving consideration to an amendment of our statutes to preclude a ruling along the lines of the original California decision. When I noted this to the chairman, he immediately suggested that perhaps we might join forces to pursue a joint venture which would amend the statutes in the manner that we both desired. The home educators' part of the bill would clarify that instruction at home is a viable and acceptable means for children to be educated in Idaho. The Task Force's part of the bill would clarify the meaning of the term "educational neglect" in Idaho's Child Protective Act.

In light of both the seeming thaw in the Task Force's regard for home education and the illumination occurring as a result of the California case, the ICHE Board of Legal Advisors conferred with the attorneys for the Home School Legal Defense Association. A fairly simple modification of Idaho Code section 33-202 seems to be the best way to ensure that Idaho courts do not make the same mistake which was initially made by the California court. It will insert a clear statement that parents who properly teach their children at home are legally on an equal footing with those that choose public schooling, private schooling, or parochial schooling.

This change, which strengthens our rights, will dovetail with the change that the Task Force wishes to make to Idaho's Child Protective Act.

The Task Force proposal would clarify that a parent's failure to make certain that his or her child is suitably instructed will constitute "child neglect" that the courts can punish or correct. The modified statute will expressly refer to section 33-202 as the educational standard which a parent must meet. With our change, that section will declare that, unless parents teach their children at home or provide other comparable instruction, the child must be enrolled in a public, private, or parochial school. This joint venture presents an opportunity both to obtain the express approval of home education as a legally sufficient means of educating one's child and to clarify the Child Protective Act at the same time.

Since home schoolers have always been among the strongest advocates of educated children, the Task Force's modification may be viewed as a useful clarification. By tying the definition of educational neglect to a declaration in section 33-202 that home schooling is a valid means of providing an education, the bill will both strengthen our freedoms and clarify the rules under which we operate at the same time.

For the moment, then, we anticipate the surprising possibility of a joint venture between the Governor's Task Force on Children at Risk and ICHE. We are cautiously optimistic for the outcome of this effort. If it ripens, it should strengthen our right to teach our children at home. It will clarify the standards to which home schoolers are held. And it may also help alleviate some of the mistrust that has characterized our relationship with the Task Force in the past. All are worthwhile goals.

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